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Who Decides What Pornography To Ban?

An incident took place at a boarding school in Dehradun last year which shocks one’s conscience. Four boys lured a minor girl to a store-room on the school’s premises and allegedly raped her. They were said to have been inspired by a pornographic film which they saw before the incident. Instead of taking action against the boys, the school’s management tried to hush up the matter. Reading about this distressing story in the press, the Uttarakhand High Court directed the central government to ban all obscene or sexually explicit material on the internet. Though the incident in question is undeniably horrific, the High Court’s knee-jerk order, unfortunately, betrayed a lack of careful analysis of the nuanced issues involved.

On July 31, 2015, the Department of Telecommunications of the central government had issued an order requiring internet service providers to ban 857 pornographic websites. The order was issued against the backdrop of a petition filed by Kamlesh Vaswani in the Supreme Court calling for a ban on pornographic websites.

Faced with a backlash, a few days later, on Aug. 4, 2015, the government scaled back the directive and asked that only those websites on the list that contained child pornography be blocked.

However, after reading about the Dehradun incident in newspapers, the Uttarakhand High Court on Sept. 27, 2018, directed the government to implement the porn ban. The court held that such websites, which are “readily available” for viewing, affect the “psyche” of impressionable children and, “at times, [result] in commission of crimes”.

Though the court’s order was certainly well-intentioned, its effect was incredibly overbroad.

Power In The Hands Of ISPs

Not merely did the court direct the government to ban the 857 websites set out in the July 2015 notification, but it also called upon all ISPs to altogether block the transmission of “obscene material in any electronic form” or “material containing [a] sexually explicit act”. This means that ISPs had to block all obscene websites, not just the ones specified in the government order. An unduly onerous burden was thereby placed on ISPs, who would find it impossible to scour the internet for weeding out obscenity.

Further, how does one define something that is obscene or sexually explicit?

As John Marshall Harlan II of the U.S. Supreme Court once wrote, in Cohen v. California(1971), “one man’s vulgarity is another’s lyric”.

Distinguishing art from obscenity is a thoroughly subjective exercise.

The list of 857 websites specified in the July 2015 order included a website called ‘nonvegjokes.com’ which only contains adult jokes – could this be considered pornography? U.S. Supreme Court Justice Potter Stewart had said in another case, Jacobellis v. Ohio (1964), that while it is difficult to define hardcore pornography, “I know it when I see it”.

But according to the Uttarakhand High Court’s order, it was not courts and judges who had to “see it”, but ISPs who had to determine whether a website was obscene.

Are we really prepared to give an ISP the power to decide, for instance, whether an e-book of Vladimir Nabokov’s novel Lolita or DH Lawrence’s Lady Chatterley’s Lover is obscene?

Court Goes Beyond Child Pornography

In seeking to implement the July 2015 notification, the High Court ignored the fact that the government had itself restricted the effect of the notification to cover only child pornography. When this was pointed out, the court merely said in its order dated Oct. 11, 2018, that this “will not make any difference”. In so holding, the court failed to realise that child pornography is usually banned because it harms the children who participate in the film, regardless of their consent, since they are incapable of giving their consent, more susceptible to being taken advantage of, and too young to understand the consequences of the film on the rest of their lives. But the same concerns may not always apply—though there are exceptions—when consenting adult actors are involved in the film, or to animated films.

Proponents of the ban might argue that pornography has no redeeming qualities – it is designed to produce merely a physical effect (i.e., sexual arousal), without conveying any ideas. However, scholars have countered that pornography does indeed convey ideas – ideas like women are in charge of their sexual destinies and not meant only for the physical gratification of men. Further, not all obscene websites incite or even encourage viewers to commit rape or sexual assault. Should such websites be barred as well?

Finally, there is scarce conclusive empirical evidence to show a causal connection between pornography and sexual assault.

For now, it seems that the Chief Justice of the Uttarakhand High Court has closed the case on Dec. 7, 2018, though there is no order available on the court’s website. However, the court’s earlier orders in the case, even if implemented, will not end pornography over the internet. Despite its best intentions, there will still be plenty of such websites which impressionable young minds will be able to visit. It is therefore imperative for parents, teachers and school administrators to ensure that children do not get access to these materials. To ban all obscene websites for fear that children might view them, however, will lead us down a slippery slope. It will mean that adults will soon only be permitted to view on the internet things which are fit for children.

Abhinav Chandrachud is an advocate at the Bombay High Court.

The views expressed here are those of the author and do not necessarily represent the views of Bloomberg Quint or its editorial team.